Thomas v. McKibben

135 Ga. App. 886 | Ga. Ct. App. | 1975

Bell, Chief Judge.

This case is an appeal from an order overruling defendant’s motion to open a default. Held:

1. The court’s comment during the hearing on the motion "I have a little discretion, but if there is no excuse, can I just arbitrarily open it?” clearly negates the defendant’s contention that the trial court erred in believing it had no discretion to open the default even in the absence of a showing of providential cause or excusable neglect under § 55 (b) of the Civil Practice Act (Code § 81A-155 (b)).

Submitted September 15, 1975 Decided September 29, 1975. Swift, Currie, McGhee & Hiers, Warner S. Currie, Samuel P. Pierce, Jr., Harvey, Willard & Elliott, E. C. Harvey, Jr., for appellant. William L. Skinner, for appellees.

2. We find no abuse of discretion in denying the motion to open the default. Defendant was served on November 27, 1974. Yet, it was not until February 24, 1975 that defendant filed a motion to open the default. The motion fails to show any reasonable excuse as to why defendant did not file an answer on time. The only ground alleged for opening the default is that defendant who was driving his employer’s vehicle at the time of an accident failed to request that his employer undertake to defend the action and that counsel for the employer’s insurer did not become aware of the suit until more than 45 days had elapsed after service. These alleged facts fall short. While CPA § 55 (b) gives a judge a broad discretion, it does not give him authority to open a default capriciously or for fanciful or insufficient reasons. Brucker v. O’Connor, 115 Ga. 95, 96 (41 SE 245).

Judgment affirmed.

Webb and Marshall, JJ., concur.